07-005504 Department Of Health vs. G.D. Yon, Jr., D/B/A Yon Septic Tank Company Status: Closed Recommended Order on Monday, May 5, 2008.

Summary: The evidence showed that Respondent threatened an inspector with bodily harm, blocked his path, and prevented him from closing truck lid when trying to leave was gross misconduct. Recommend a $500.00 fine with a 90-day suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 07-5504

)

G. D. YON, JR. d/b/a )

YON SEPTIC TANK COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted in this proceeding before Diane Cleavinger,

Administrative Law Judge, Division of Administrative Hearings on

February 26, 2008, in Marianna, Florida.

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

Department of Health

Northwest Law Office

1295 West Fairfield Drive

Pensacola, Florida 32501

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent’s license as a septic tank contractor should be disciplined.

PRELIMINARY STATEMENT

On October 26, 2007, Petitioner filed an Administrative

Complaint against Respondent, alleging that his license should

be revoked for violation of Section 381.0065(3)(c), Florida

Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l)1.

Specifically, the Administrative Complaint alleges that

Respondent should be fined and his license revoked for gross

misconduct that occurred when Respondent threatened bodily harm

to an inspector from the Department and later threatened to have

the inspector fired if he did not approve the septic system

Respondent was installing.

Respondent disputed the allegations of the Administrative

Complaint and requested an administrative hearing pursuant to

Section 120.57, Florida Statutes. Thereafter, the case was

forwarded to the Division of Administrative Hearings for formal

proceedings.

At the hearing, Petitioner presented the testimony of one

witness. Respondent, G. D. Yon, Jr., did not appear at the

hearing after receiving sufficient notice of the hearing.

Additionally, at the conclusion of the hearing, Count III

of the Administrative Complaint was dismissed with the

concurrence of Petitioner since there was no evidence to support

a finding that Respondent’s actions caused monetary harm to his

customer.

After the hearing, Petitioner submitted a Proposed

Recommended Order on March 19, 2008.

FINDINGS OF FACT

1. Respondent is registered with Petitioner as a septic

tank contractor and authorized to provide septic tank

contracting services, holding Registration No. SR0890264 and

Authorization No. SA0900453.

2. David B. Grimes is employed by Bay County Health

Department as an inspector responsible for the inspection of on-

site sewage systems.

3. On August 22, 2007, Mr. Grimes inspected an on-site

sewage treatment disposal system (OSTDS) being constructed by

Respondent at 5431 John Pitts Road, Panama City, Florida.

4. The OSTDS failed to meet the minimum rule requirements

due to a defective tank and improperly installed drainfield.

The tank was defective because its dimensions were smaller than

the dimensions required to enable the tank to have sufficient

liquid capacity for the system being installed. Mr. Grimes told

Respondent that he could not approve the system.

5. Upon learning that the system would not be approved,

Respondent, who is a large man and larger than the inspector,

threatened to do bodily harm to Mr. Grimes and stated, “I am

going to whip your ass”. He also used other profanity in a

threatening and serious voice. The inspector began to put his

tools into the tool container on the back of his truck. When

the inspector attempted to close the container’s lid and leave,

Respondent blocked the path of the inspector and would not let

him close the truck-bed lid. Respondent insisted the system be

inspected and approved so he could finish the job. Other than

blocking his path, Respondent did not take any other physical

action towards harming Mr. Grimes. Other than with his hands,

the evidence did not show that Respondent had the means to cause

serious harm to Mr. Grimes. However, Mr. Grimes felt some fear

for his safety and was very uncomfortable. He refused to

approve the system and left the premises. He called his

supervisor to report the incident and request a second

inspection by his supervisor. Later that day, Mr. Grimes and

his supervisor inspected the OSTDS. Respondent was not present.

The inspector concurred with Mr. Grimes’ findings and the system

was not approved.

6. On August 23, 2007, Mr. Grimes made a second visit to

the property to continue the inspection of the OSTDS. The

drainfield was corrected and a new and larger tank was

installed. The dimensions of the tank were again smaller than

required to meet the liquid capacity of the tank. Additionally,

the tank had a gap in the seal around the intake feed line. It

was, therefore, defective and could not be approved.

7. Mr. Grimes told Respondent that he could not approve

the system. Respondent again grew angry when he was told the

new tank was also defective and would not be approved.

Respondent stated that Mr. Grimes was the worst inspector in the

area and made other derogatory remarks towards him. Respondent

also threatened to make trouble with the inspector’s employment

and/or “get him fired” unless the system was passed. The

evidence did not show that Respondent made any physical moves

toward Respondent or otherwise impeded his inspection. The

inspector was again fearful for his personal safety although the

evidence did not demonstrate a reasonable basis for such fear.

The OSTDS was not approved and Mr. Grimes left the work site.

8. There was no evidence that Respondent followed through

with interfering with Mr. Grimes’ employment.

9. At best, the evidence showed that Respondent’s threat

to interfere with the inspector’s employment was mere hyperbole.

Such comments are common. While silly and rude, the mere threat

of an employment action does not rise to the level of being

unlawful and does not demonstrate misconduct sufficient to

impose discipline on Respondent’s license.

10. On the other hand, the actions of Respondent towards

the inspector when he threatened to do bodily harm to the

inspector, and blocking his attempts to leave unless he approved

the system, did constitute gross misconduct on the part of

Respondent. Even though Respondent’s actions were unsuccessful,

Respondent’s words coupled with his conduct go beyond mere

hyperbole and constitute an unlawful threat towards a public

official to influence the official’s actions.

11. Respondent’s actions did not cause physical or

monetary harm to any person.

12. In the past, Respondent was disciplined by letter of

warning in Case Number SC0478 in 2000, for covering a new

installation in violation of the system construction standards

and by citation in Case Number SC0591 in 2001, for creation of a

sanitary nuisance, negligence, misconduct, and falsification of

inspection report. The instant violation is a second violation

for misconduct and a repeat violation of the rules of the

Department.

CONCLUSION OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2007).

14. Inspectors are authorized to inspect construction of

OSTDS, and assure construction and installations are in

compliance with applicable laws and rules.

15. Section 381.0065(3)(c), Florida Statutes, states, in

pertinent part:

[Department shall] Develop a comprehensive

program to ensure that onsite sewage

treatment and disposal systems regulated by

the department are sized, designed,

constructed, installed, repaired, modified,

abandoned, used, operated, and maintained in

compliance with this section and rules

adopted under this section to prevent

groundwater contamination and surface water

contamination and to preserve the public

health. The department is the final

administrative interpretive authority

regarding rule interpretation. In the event

of a conflict regarding rule interpretation,

the Division Director of Environmental

Health of the department, or his or her

designee, shall timely assign a staff person

to resolve the dispute.

16. Chapter 381.0061(1), Florida Statutes, states "in

addition to any administrative action authorized by Chapter 120

or by other law, the department may impose a fine, which shall

not exceed $500.00, for each violation of Section 381.0065,

Florida Statutes . . ."

17. Section 489.556, Florida Statutes, states, in

pertinent part:

A certificate of registration may be

suspended or revoked upon a showing that the

registrant has:

* * *

(4) Been found guilty of gross misconduct

in the pursuit of his or her profession.

18. Florida Administrative Code Rule 64E-6.022 states in

pertinent part:

(1) . . . The following actions by a person

included under this rule shall be deemed

unethical and subject to penalties as set

forth in this section. The penalties listed

shall be used as guidelines in disciplinary

cases, absent aggravating or mitigating

circumstances and subject to other

provisions of this section.

* * *

(l) Gross negligence, incompetence, or

misconduct which:

1. Causes no monetary or other harm to a

customer or physical harm to any person.

First violation, letter of warning or fine

up to $500; repeat violation, $500 fine and

90 day suspension or revocation.

* * *

(2) Circumstances which shall be considered

for the purposes of mitigation or

aggravation of penalty shall include the

following:

(a) Monetary or other damage to the

registrant's customer, in any way associated

with the violation, which damage the

registrant has not relieved, as of the time

the penalty is to be assessed.

(b) Actual job-site violations of this rule

or conditions exhibiting gross negligence,

incompetence or misconduct by the

contractor, which have not been corrected as

of the time the penalty is being assessed.

(c) The severity of the offense.

(d) The danger to the public.

(e) The number of repetitions of the

offense.

(f) The number of complaints filed against

the contractor.

(g) The length of time the contractor has

practiced and registration category.

(h) The actual damage, physical or

otherwise, to the customer.

(i) The effect of the penalty upon the

contractor's livelihood.

(j) Any efforts at rehabilitation.

(k) Any other mitigating or aggravating

circumstances.

(3) As used in this rule, a repeat violation

is any violation on which disciplinary

action is being taken where the same

licensee had previously had disciplinary

action taken against him or received a

letter of warning in a prior case. This

definition applies regardless of the

chronological relationship of the violations

and regardless of whether the violations are

of the same or different subsections of this

rule. The penalty given in the above list

for repeat violations is intended to apply

only to situations where the repeat

violation is of a different subsection of

this rule than the first violation. Where

the repeat violation is the very same type

of violation as the first violation, the

penalty set out above will generally be

increased over what is shown for repeat

violations.

19. Petitioner must prove by clear and convincing evidence

that Respondent’s license should be disciplined. See Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Section 120.57(1)(h), Florida Statutes ("Findings of fact shall

be based on a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute.").

20. "[C]lear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be established." In re Davey , 645 So.

2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

21. Section 838.021, Florida Statutes, states corruption

by unlawful threat against a public servant includes threatening

unlawful harm to the public servant to influence the performance

of a discretionary act by the public servant.

22. "Gross" misconduct means misconduct which is

immediately obvious or glaringly noticeable. See Webster's New

Collegiate Dictionary (1981).

23. In this case, Respondent’s threatened job action was

no more than bluster and neither unlawful or serious. Other

than the threat, there was no other conduct associated with

Petitioner’s threat that would cause a reasonable person to

believe Respondent’s threat should be taken seriously. On the

other hand, Respondent’s threat to physically harm the inspector

if he did not approve the system Respondent was installing was

more than words. The inspector’s attempt to leave was blocked

and he was prevented from closing the lid to his tool container.

During this encounter, Respondent’s demeanor was threatening and

serious. Physical threats, coupled with Respondent’s actions,

are clearly gross misconduct in that such behavior constitutes a

malicious and unlawful threat against a public official to

influence that official’s action. Such gross misconduct is a

violation of Section 489.556, Florida Statutes. See Department

of Health and Rehabilitative Services v. Sutton , DOAH Case No.

95-1470 (July 14 1995). The fact that Respondent’s conduct did

not result in physical or monetary harm to anyone mitigates in

his favor. Additionally, there was no evidence that

Respondent’s physical threat and accompanying conduct was

routine or frequent. On the other hand, this violation is a

repeat violation for misconduct and a second violation of the

Department’s rules. Revocation would seriously impair

Respondent’s livelihood and effectively terminate his septic

tank business. Given these facts, the appropriate penalty under

the guidelines above is a $500.00 fine and a 90-day suspension

of Respondent’s registration.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is, therefore,

RECOMMENDED that Respondent's license be disciplined for

violations of the Florida Administrative Code Rule 64E-6.022 and

that his Septic Tank Contractor License No. SR0890264 and

Authorization No. SA0900453 be fined in the amount of $500.00

and suspended for 90 days.

DONE AND ENTERED this 5th day of May, 2008, in Tallahassee,

Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of May, 2008.

COPIES FURNISHED :

Rodney M. Johnson, Esquire

Department of Health

Northwest Law Office

1295 West Fairfield Drive

Pensacola, Florida 32501

G. D. Yon, Jr.

Yon Septic Tank Co.

2988 Hwy 71

Marianna, Florida 32446

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte-Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A-00

Tallahassee, Florida 32399-1701

Josefina M. Tamayó, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.